State v. Whitmarsh

• Decision Date: 18 November 1910
• Parties: STATE v. WHITMARSH.
• Court: South Dakota Supreme Court

128 N.W. 580

26 S.D. 426

STATE v. WHITMARSH.

Supreme Court of South Dakota

November 18, 1910

Appeal from Circuit Court, Beadle County.

Louis Whitmarsh was convicted of an assault on a boy with intent to commit the crime against nature, and he appeals. Affirmed.

Corson J., dissenting.

C. A Kelley and James Byrnes, for appellant.

S. W Clark, Atty. Gen., and O. S. Hagen, State's Atty., for the State.

WHITING P. J.

Appellant was tried upon an information charging that he did "willfully, unlawfully, and feloniously make an assault upon one *** a boy of six years of age, with the intent then and there to commit in and upon the person of the said *** the detestable and abominable crime against nature, in violation of section 351 of the Penal Code of the state of South Dakota and contrary to the statute. ***" The jury returned a verdict of guilty, the court rendered judgment and appellant was sentenced, on February 1, 1909, to imprisonment in the state's prison for a period of three years commencing that date. Appellant appealed from the judgment and from the order of the trial court denying a new trial.

Numerous assignments of error are set forth in the abstract upon appeal, but, under the established rule of this court, we will consider all abandoned except such as are discussed in appellant's brief.

Appellant assigns as error the overruling of a demurrer to the information. Appellant in his brief claims that the state's attorney stated to the lower court that by such information he intended to charge defendant with having committed the crime of sodomy, and appellant contends that such information only purports to charge "an assault with intent to commit crime against nature." There is nothing in the abstract to show that the state's attorney made any such statement, and the charge of the court to the jury shows that the appellant was tried on the charge of "an assault with intent," etc. Appellant further contends that such information is not specific enough-that it does not call attention to the particulars of the offense, the acts done in consummation thereof. The information is not subject to this objection. It has been universally held that, in informations or indictments charging crimes of the nature of the one with the intention of committing which appellant was charged, it is unnecessary to go into the loathsome and disgusting details thereof. Even in the time of Blackstone this rule was applied to the common-law crime of sodomy as is evidenced by the following quotation from 4 Blackstone, Commentaries, 215: "I will not act so disagreeable a part to my readers as well as myself as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate the delicacy of our English law, which treats it, in its very indictments, as a crime not to be named." Bradford v. State, 104 Ala. 68, 16 So. 107, 53 Am. St. Rep. 24; Commonwealth v. Dill, 160 Mass. 536, 36 N.E. 472; 20 Ency. P. & P. 275; State v. Williams, 34 La. Ann. 87.

Appellant complains because, as he claims, the state was allowed to ask him upon cross-examination a certain question. An examination of the abstract fails to show what witness was asked the question referred to. The objection interposed was that the evidence was "incompetent, immaterial, and not proper cross-examination." There is nothing to show what was elicited from the witness upon direct examination. The record is insufficient to present the error to the court, even if there were error.

Appellant contends that the trial court erred in not allowing "defendant's witness in whose employ the defendant had been for more than a year immediately prior to the commencement of this case to answer the following question: 'Q. Has Louis been a good boy while he worked for you?"' Even if it were to be conceded that a question so general in nature was proper upon defense of the crime charged here, yet we are again confronted with the condition of the abstract. This question follows directly the answer to the question above discussed, and it would appear that both questions were asked of one witness. There is absolutely nothing to show who was asked this question; nothing to show when, where, or for how long witness had known the appellant; nothing to show that appellant had ever worked for the witness, whoever such witness may have been.

Appellant complains of the period of sentence, alleging that it would terminate between November and March, and that this is forbidden by section 799, Rev. Pen. Code. Appellant has overlooked the provisions of our Code allowing time for good behavior. If the court had fixed a term which after allowing time that might be earned by good behavior would expire during the winter period, the appellant might have some cause for complaint, but it lies solely with appellant to say whether or not by wrongful conduct his sentence shall extend so as to expire during the winter.

Appellant complains in his brief of several portions of the charge to the jury. An examination of the record, however, shows that but one part of such charge was excepted to, being that portion of the judge's charge "wherein he states that the act described by the prosecuting witness, if true, would constitute the crime charged in the information." Inasmuch as the act described by such witness was one made clear by the evidence of the witness, so clear that there could be no possibility of a misunderstanding by the jury as to the act that was referred to by the court, the only question for this court to determine is whether the act described by the prosecuting witness was an act constituting the consummation of the crime against nature. If such an act, it proved both the assault and the intent charged. If not such an act, while it was an assault most detestable in nature, yet it would be absolutely no proof of an intent to commit the crime against nature, and there was no other proof of such intent. A determination of this question also determines the correctness of the trial court's ruling upon a motion made by appellant for a directed verdict.

We regret that the importance of this question, covering as it does a matter wherein the courts of other states are in conflict, renders it necessary to soil the pages of our reports with a discussion of a subject so loathsome and disgusting as the one confronting us. The question presented is, whether or not the crime against nature when committed by one male person upon another male person can be committed through the mouth, or whether it can only be committed through the anus. It must be conceded that under the common law sodomy could not be committed by means of the mouth; the reason given by all the authorities being that given in Russell on Crimes *937: "To constitute this offense, the act must be in that part where sodomy is usually committed." The mere statement of the above reason shows the unsoundness of such a distinction. It concedes that the act is sometimes committed in some other part, and, by conceding that the act committed in such other part is not the usual offense, the statement concedes that the act, if committed in such other part, would be still more unnatural, because, if not more unnatural, it would not be more unusual. Certainly this unusual act is many times more "detestable and abominable" than that made criminal at common law. As was well said by the court in State v. Vicknair, 52 La. Ann. 1921, 28 So. 273: "But why in the common-law courts the use of the mouth should not have been considered as much against nature as though the act were committed per anum is incomprehensible." If it should be conceded that our statute, which refers to the crime, not by the use of word "sodomy," but by the use of the phrase "detestable and abominable crime against nature," does not, by such words, include more than is included in the one word "sodomy," yet should we feel bound by a construction based upon no sounder...